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Mediation & Sports ... a new perspective.

i.                    Preamble

Litigation is the conventional method for settling disputes. However, not all disputes require the adversarial approach to come to a resolution. There are many aspects to any dispute and many different ways of resolving differences. Therefore, a modern legal system should provide not only judicial, but also non-judicial procedures for resolving private disputes, which are associated with different advantages and disadvantages.

Mediation is an alternative system of solving disputes between parties, with the assistance of a third, objective party, the mediator, who assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to resolve the dispute and the terms of resolution.This institution has a long history and has been practiced since antiquity. In the modern era and especially in the Western world, mediation first appeared in the 1970s in the U.S. and then in Australia and Canada, while in the late 1980s it was introduced and started to be developed in the United Kingdom.Through mediation, the solution of differences is often achieved faster and more economically compared with the traditional courtroom and formal judicial procedures. At the same time relations between the parties involved are protected. Mediation may be viewed as a "win-win" procedure, in which both sides benefit upon reaching a solu­tion of their dispute.

Mediation is being used to resolve disputes in business, workplace, health, family, in a variety of tort claims and in other disagreements that would otherwise involve litigation. In recent years, the professional sports leagues and the Olympic Movement utilize mediation as a preferred method of resolving a variety of sport-related issues. Much of the reason that mediation is so preferred is that the emphasis is placed on the “needs” of the parties themselves[1]. Moreover, the fact that sport disputes must be solved quickly and the fact that sport activity has a transnational character are the main needs related to sport disputes that led to such a choice.

This paper is confined to the examination of mediation, as well as the legal framework of mediation at European and Greek level. Particular part of the paper is devoted to sports mediation and its usefulness in a variety of sport-related issues.

 

ii.                  What is MediationWho is the role of Mediator?

As we mentioned above, mediation is a flexible process, conducted confidentially, in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to resolve the dispute and the terms of resolution.

Mediation needs to be distinguished from the other forms of alternative dispute resolution leading to the settlement of disputes by the role and the degree of involvement of the third party. In arbitration, the parties empower a third person to decide the outcome of the dispute and the decision is binding like a judgment, where as in conciliation, the third party just recommends a solution to the dispute. In addition, in mediation, the third party (mediator) just assists parties in a wide range of ways to make progress towards settlement.

Mediation starts with the signing of a “mediation agreement” setting out the legal structure behind the mediation process and the framework within which the parties and the mediator will work. Confidentiality, ownership by the parties, mediator’s neutrality and impartiality, voluntary nation of the procedure, non-binding procedure are the basic characteristics and the cornerstones of the mediation process[2].

In particular, confidentiality is one of the cornerstones of mediation, without which it would not be possible to settle any dispute in this context.The concept of confidentiality has a twofold meaning; first, confidentiality as to the actual fact of the existence of the mediation process and, secondly, confidentiality as to the information disclosed during the mediation. The first is that if the case does not settle and it has to go to court anything said or occurred throughout the process “stays there”. No-one, neither the parties, nor the mediator or anyone else involved in any way to the process is allowed to make any reference or to disclose to anyone else information derived from or associated with the mediation process, including the information that the mediation is to take place or has already taken place, either verbally or in writing, unless he is obliged to do so by law or for public order purposes orhe is explicitly authorized by both the parties. Furthermore, anything said or occurred throughout the process cannot be used before a court of law or an arbitral tribunal. The second meaning of confidentiality is related to the mediator himself. Any information disclosed in confidence to the mediator by a party may not be disclosed to other parties unless upon consent.

One of the strengths of mediation is that the parties have a major input into the process and complete control over the final decision. Another important characteristic of mediation is that it is based on the good will of the parties to use it as a mean to solve their dispute. The parties may withdraw from the mediation at any time without giving any justification. And of course, exactly because the whole process is based on the will of the parties, they can later on, decide to try mediation again! Going with the voluntary nation of mediation is the notion of a non – binding procedure until the signing of the final agreement[3]. Nothing is binding legally until that agreement is written up and signed by the, so authorized, parties.

Moreover, the mediator should act in such a way as to ensure his full independence and in particular should pay particular attention to conflicts of interest. He should not hide any event that might be considered as prejudicial to his independence but disclose this directly and subsequently proceed to the mediation only if he obtains the express consent of the parties. In any case, if an issue that could affect the principles of independence and neutrality emerges, he is required to reflect and decide for himself if he can carry out the mediation in compliance with the above principles; otherwise, he should deny this, even if the parties consent to its continuance. The independence obligation of mediators is not limited to those resorting to mediation but extends to any other interested or indirectly involved party[4].

 

iii.                European Legal Framework

At European level, the most important reference to mediation was made by Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008[5] on certain aspects of mediation in civil and commercial matters, which was designed to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.Considering that mediation can offer a cost effective and quick extrajudicial resolution of disputes through processes tailored to the needs of the parties, the Directive sought the establishment of a legislative framework covering particular, key aspects of civil procedure.

With the benchmark assumption that mediation should not be regarded as a poorer alternative to judicial proceedings -in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties -, in August 2010 the Commission urged Member States to apply the EU Directive on Mediationin national situations. Vice-President Viviane Reding, EU Commissioner for Justice, said[6]: "These EU measures are very important because they promote an alternative and additional access to justice in everyday life. Justice systems empower people to claim their rights. Effective access to justice is protected under the EU Charter of Fundamental Rights. (…) Citizens and businesses should not be cut off from their rights simply because it is hard for them to use the justice system and because they cannot afford it, cannot wait for their time in court, or cannot deal with the red tape.(…) I call on member states to be ambitious in putting the EU rules on mediation in place swiftly: the bare minimum is to allow cross-border disputes to find amicable settlements. But why stop there? Why not make the same measures available at national level? (...) In the end,it is citizens and businesses, societies and economies, and the legal system itself that will benefit."  In this call, the Commission emphasized the potential of the existing EU rules on mediation andreminded Member States that these measures can only be effective if put in place at national level. All that is missing are cross-border rules giving parties certainty about the process and its enforceability.

 A crucial element in any mediation is trust in the process, especially when two parties come from different countries. EU rules therefore encourage member states to provide quality control, offer training to mediators and establish codes of conduct to make sure there is an effective mediation system in place. Indeed, a European Code of Conduct for Mediators has been developed by a group of stakeholders with the assistance of the European Commission and was launched on July 2, 2004. The European Code of Conduct sets out a number of principles to which individual mediators can voluntary decide to commit; these principles refer to the competence, appointment and fees for mediators, the promotion of their services, their independence and impartiality, the mediation agreement and the confidentiality rule.

 

iii.                Mediation in Greece (Law No. 3898/2010).

In Greek legal theory and practice, mediation, as well as other forms of alternative dispute resolution, is based on the principle of party autonomy, guaranteed by Article 5 para.1 of the Greek Constitution, although in some cases resource to alternative dispute resolution is prescribed by the law[7].

The concept of mediation has obtained a specific new content after the adaptation of Greek Law to Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 by the enactment of Law No.3898/2010(Government Gazette No 211/16-12-2010, vol. 1)[8]. The Greek Legislator adopted the relevant definition in an almost similar way to that given by the Mediation Directive. According to Article 4b of Law No.3898/2010 " Mediation is meant as a structured process, however named, whereby two or more parties to dispute voluntarily attempt to reach an agreement on the settlement of their dispute with the assistance of a mediator”.  This definition of mediation may cover different types of alternative dispute resolution and is irrelevant to the characterization of an alternative dispute resolution made according to the Greek Law. As expressly stated by Law No. 3898/2010, the attempts made by Greek Courts to settle a dispute in the course of judicial proceedings provided by the Greek Code of Civil Procedure are excluded from the scope of Law No. 3898/2010.

The mediation process, according to the Greek Law (Article 2 of Law No. 3898/2010), applies to civil and commercial law disputes concerning right and obligations which are at the parties’ disposal. According to the Explanatory Report, reproducing Article 2 of the Mediation Directive, revenue, customs and administrative matters, as well as the liability of the State for acts and omissions in the exercise of the State authority are excluded from the scope of this Law. Although the preamble of the Directive states as examples of rights and obligations on which the parties are not free to decide themselves rights and obligations that “are frequent in family law and employment law”, neither the Greek statutory text nor its Explanatory Report state any matters of family and labour law which are not at the parties’ disposal[9]. As pointed out, it is a matter on which Greek legal theory and the courts will be called to give their interpretation in the future[10].

Article 4c of the Law No. 3898/2010 defines the mediator as a third person who is asked to conduct mediation in an effective, impartial and competent way, regardless of the way in which the third person has been appointed or requested to conduct the mediation. The task of the mediator – as opposed to that of an arbitrator is to assist the parties to resolve their dispute. A mediator is not authorized to make binding decisions or to indicate possible solutions for the resolution of the dispute to the parties. However, the mediator may formulate some thoughts helpful for the parties to reach an agreement[11].

As regards the persons entitled to provide mediation services, Law No. 3898/2010 distinguishes between domestic disputes and cross- border disputes: a) In domestic disputes mediators must be solely attorneys-at-law who have acquired accreditation pursuant to Article 7 of Law 3898/2010 and b) In cross- border disputes, the parties are allowed to appoint as mediator any person who is accredited mediator. Unlike as requested for domestic mediation, it is not necessary to be an attorney-at-law. By broadening the circle of persons entitled to be mediators in cross-border disputes, Greek Law on mediation is consistent with Directive 2008/52/EC which enables to third person to be a mediator regardless of its profession[12].  

The basic principles governing the procedure of mediation are laid down in Article 8 of Law No. 3898/2010. The parties in dispute appear mandatory with an attorney-at-law, which help the parties to better understand both the legal issues arising out of the mediated case and the potential dispute resolution. The details of the mediation procedure are determined by the mediator after the consultation with the parties concerned. During the mediation process the mediator may communicate and meet with each party separately. Information disclosed to the mediator by a party in the course of that a communication may not be disclosed by the mediator to do so. The mediator must ensure that all the parties have adequate opportunities to participate in mediation. The mediator must ensure that all parties have adequate opportunities to participate in mediation. The mediator must inform the parties and may terminate the mediation if he considers that a settlement that is being reached is unenforceable or illegal or if he/she considers that the continuation of the mediation is unlikely to result in a settlement of the dispute[13].      

At this point, it would be useful to report a particularity concerning the introduction of the institution of mediation in Greek law, which is not found in most other countries. In the U.S., the UK and in most other European countries, the institution of mediation, although recognised as a form of alternative dispute resolution, is not strictly defined as to the process of its implementation[14]. In practice this means that (a) the mediator can be any natural person (while in Greece only a lawyer, except in the case of cross-border disputes[15]), (b) the mediator does not have to be accredited (while in Greece accreditation is required from the Department of Advocates and Judicial Officers of the General Administration of Justice of the Ministry of Justice, Transparency and Human Rights[16]), and (c) the mediation process is distinguished by the lack of any formality and set rules (while, in Greece, Law No. 3898/2010 has very detailed provisions on numerous issues that determine the conduct of the mediation process[17]).

Law No. 3898/2010 provides for the basic rules while certain specific matters are to be regulated by delegated legislation. So far, a Presidential Decree and five ministerial decisions have been issued aiming to make Law No. 3898/2010 operational. In particular, by the Decision of the Minister of Justice, Transparency and Human Rights No. 109088/2011(Government Gazette B 2824/14.12.2011) enacted a Code of Conduct for the accredited mediators[18] (Greek CCAM), which closely follows the European Code of Conduct for Mediators. The Greek CCAM refers explicitly to the basic ethical principles the mediator must have and among the other principles, itmakes explicit reference to the concept of confidentiality and devotes an entire article to this (article 4). As we mentioned above, the concept of confidentiality has a twofold meaning; first, confidentiality as to the actual fact of the existence of the mediation process and, secondly, confidentiality as to the information disclosed during the mediation. Confidentiality is one of the cornerstones of mediation, without which it would not be possible to settle any dispute in this context. The concept of trust is inextricably connected to the concept of confidentiality, since the mediator must first build interpersonal relations with the involved parties, to gain their trust so that they may reveal confidential information that they would never disclose to anyone else, let alone their "opposing party", allowing the mediator to subsequently keep them in complete confidence, whose breach would affect not only the specific mediation or the prospect of reaching an agreement but also the trust of society in the institution[19].

In addition to the two above concepts of trust and confidence, there is also a third concept, also closely linked to the other two and serving the same purpose; this is secrecy, to which an explicit reference is made in Law 3898/2010, and in particular article 10 thereof[20]. Indeed, the legislature places such importance to this that it protects both the mediator and all other parties involved in the mediation from the obligation to disclose any information about this (even if summoned to make a statement in court) with the only exception of cases where this is imposed by public order regulations (protection of minors or prevention of harm to the physical safety or mental health of individuals).

 

iv.                Sports Mediation

Sport is a highly competitive, highly selective environment, at both amateur and professional level. Anyone involved with sports at any level has heard stories of disputes occurring between athletes on the same or opposing teams, between coaches of opposing teams, athletes and referees, coaches and referees, between Federation and athletes/coaches, National Olympic Association and International Olympic Association etc. Energy, focus and commitment, essential qualities for sporting success, can be negative factors when a dispute arises[21]. Energy is expended on obsessive, distracting attachments to the dispute and the personalities involved. Focus becomes fixation on misunderstandings with an inability to see the bigger picture. Commitment creates an unwillingness to compromise or to concede that another person sincerely holds a different view, which they believes to be equally reasonable, and which may also have merit. The passion and emotion at the heart of sport is replicated in every dispute[22].

These factors impact upon the resolution of conflict and may include emotions self-esteem, personal values and the need to be heard and it is crucial in resolving any sports dispute to appreciate these factors. For example, recognition of the need to be heard and how that need is managed is important in creating a workable solution which will enhance future relationships. Management decisions made when a dispute first emerges are crucial, and the wrong strategic decision at that point may inflame a situation[23].

All of these difficulties can be addressed at an early stage in Mediation where matters can be aired and resolved in an open transparent way through the impartiality and assistance of the Mediator in assisting the parties to come to outcomes acceptable to all sides. Mediation differs from litigation and arbitration because a judge or arbitrator does not impose a binding decision on the parties. It also enables the parties to work with the Mediator to come to their own solution.

Any dispute of a commercial nature in the context of sport and sport administration, as well as sport-related issues in general, should be suitable for mediation, with a very small number of specific exceptions.  The range of sporting disputes that could arise is very wide, including[24]:

  • Disputes between athletes on the same or opposing teams, between coaches of opposing teams, athletes and referees, coaches and refereesRelationship disputes between athletes and coaches which are undermining sporting success.
  • Issues of labor nature for athletes and coaches.
  • Disputes concerning payments arising from terminations of coaching contracts.
  • Disputes concerning payments due following terminations of commercial agreements.
  • Disputes between sporting organizations over their rights and entitlements to govern aspects of their sport.
  • Disputes between and Federation andathletes/ coaches. i.e.the system used by the Federation for the qualification of athletes in order to participate in official sport events. Disputes between the Federations such as the conditions of membership or the suspension of a national federation.
  • Disputes between National Olympic Association and International Olympic Association.
  • The organizer right to allow or to refuse the participation of a team in a sport event.
  • The validity of a sport agent contract.
  • Issues of pure economic nature such as sponsoring.

The significant advantages of mediation over litigation processes are the following: 

  • It saves time and energy, due to the fact that most mediations are arranged within a few days/ weeks compared with months or sometimes years in the case of litigation.
  • It is flexible, speedy and confidential.
  • Parties must agree voluntarily to enter into mediation. It cannot be forced on one party by the other.
  • Parties are involved in the decision making process and do not hand over control to a judge or arbitrator.
  • Win-win situation.
  • Parties have nothing to lose in trying mediation. Litigation can commence or continue if mediation is unsuccessful and nothing revealed in mediation can be used in any subsequent court or arbitration proceedings.
  • Ways to deal with emerging disputes. Mediation can maintain sporting and business relationships far more effectively than litigation because it is a non-adversarial process which facilitates communication between the parties.
  • A wide variety of settlement options can be achieved in mediation over and above monetary settlements.
  • Non-binding process in the sense that either party can walk out at any time. At the end of the process these can be written into a settlement agreement that is binding on the parties.
  • The rights of the parties, including the right to proceed or continue with arbitration or any other process in Court, will remain unaffected by the Mediation unless the mediation results in a settlement. 

Successful out comes may not simply be limited to the agreement of financial terms.  In many cases discussions facilitated by a third party have identified aspects of a dispute that were capable of being resolved in other commercial and effective ways that the parties would not have been able to get in court, not contemplated before the start of the mediation and which benefit all parties affected by the dispute.

In general, mediation is well-suited for sports because it fits to the specificity of sport and there is not only one winner, and no loser. ‘Sport’ is by definition a form of competitive activity[25]. Great athletes and coaches hate to lose. In successful mediation everyone can be a winner.

According to Simon Gardiner (Sports Law, Routledge 2006, p. 251), another main advantage of using mediation to settle sports disputes is that the process preserves personal and business relationships. “The sports world is a small one – everyone seems to know somebody – and relationships, and indeed, reputations, are therefore more important and worth preserving”. Mediation allows “legal disputes to be resolved within the family of sport”.

Now, having in mind all the benefits of sport mediation, let’s consider this real case[26]

The International Olympic Committee (IOC) has been forced to try and settle a dispute that has arisen between the British Olympic Association (BOA) and the London Organising Committee (LOCOG), two of the Game's most high profile stakeholders. Essentially the dispute centres on whether or not the costs involved in staging the Paralympic Games (which is likely to run at a loss) should be separated from the profits generated by the Olympic Games. LOCOG argue that there should be no separation, whereas the BOA believe they should be separated. Predictably, the dispute boils down to money: the BOA believes it is entitled to a larger tranche of any surplus once the Games close.

The battleground centers on the BOA's view that because the Paralympics have been underwritten by the government, LOCOG is not entitled to divert funds from the Olympics to the Paralympics. The BOA has also submitted that this was a stipulated term of the Joint Marketing Programme Agreement (JMPA) entered into by both parties in 2005. LOCOG has openly disagreed with this interpretation, and stated that it was agreed between all stakeholders that the Olympics and the Paralympics would fall within the same budget.

This dispute is an ideal case for mediation because formal proceedings to seek a declaration as to the terms of contract cannot be ruled out. Hopefully, through mediation, a resolution can be achieved and arosen issues will be resolved as quickly and painlessly as possible. Should that mediation proves successful, it will be binding on both parties; however, the difficulty will be finding a middle ground between two parties who have different interpretations of the JMPA, and what the original "vision" was. That difficulty will be compounded by the potentially considerable sums in dispute, and indeed a disagreement over the level of any profits that Olympics may or may not generate.

 

v.                   Conclusion

In recent years traditional litigation is often the more frequent method to resolve disputes. However, mediation has become a widely popular and preferred method to reach legal solutions for many involved in sports. It is usually more efficient, less costly and often more effective than litigation.

Mediation is not a perfect system and it presumes that both parties wish to explore a compromise, but itis a highly successful institution internationally, with multiple benefits for society at large and it is fortunate that, albeit belatedly, it was introduced into Greek law. In Mediation more emphasis is placed on problem-solving and settlement than on “win at all costs” and the parties feel satisfied with the end result.

The institution of mediation is still taking its first steps in the Greek legal system and it is logical and expected for numerous questions to arise in relation to both the nature of the institution and to its application. Moreover, it is perfectly normal for weaknesses in the existing legislative framework to arise, which will be covered in due course as dictated by the living reality of the institution.

To conclude, we can only say that it is great for the parties to have more than one option to settle their dispute. And therefore, the adoption of mediation by European Union and then by Greek Law can only be applauded!

It now remains for all stakeholders (institutions and individuals) but mostly for the Greek state, bar associations, mediator associations and professional chambers to support it with all their forces, to contribute with fertile and bona fide proposals in the public debate on the improvement of the institution and to defend its application.

 



[1]Kupelian Peter & Salliotte Brian, The use of Mediation for Resolving Salary Disputes in Sports, 2 T.M. Cooley J. Prac & Clinical L. 383, 393 (1999).

[2]The CEDR Mediation Handbook, CEDR 2010, Fifth Edition, p. 38.

[3]Manarakis Sergios, Arbitrating or Mediating Sport Related Disputes? Pros and Cons, on http://www.diamesolavisi.com/index.php?option=com_content&view=article&id=127:-arbitrating-or-mediating-sport-related-disputes-&catid=1:latest-news&Itemid=73.

[4] Avlogiari Evi, Terzis Konstandinos, Code of Conduct for Accredited Mediators Legal Dimension- Ethic Matters, on  http://www.avlogiari.gr/files4users/files/news/Code.pdf.

[5]Dir. 2008/52/EC of the European Parliament and of the Council of 21st May 2008 regarding mediation issues in civil and commercial cases, Official Gazette of the European Union L.136/3 (24.05.2008).

[6] http://ec.europa.eu/commission_2010-2014/reding/multimedia/news/2011/07/20110722_en.htm

[7]   Kourtis Vasilios, Civil and Commercial Mediation in Greece, in Civil and Commercial Mediation in Europe v.1, edited by Ensplugues C., Iglesias J.L., Palao G., 2013 Intersentia, p. 194.

[8] Law No 3898/2010 (GG No 211/16-12-2010, vol. 1) - “Mediation in civil and commercial cases”.

[9]  Kourtis Vasilios, Civil and Commercial Mediation in Greece, in Civil and Commercial Mediation in Europe v.1, edited by Ensplugues C., Iglesias J.L., Palao G., 2013 Intersentia, p. 194.

[10]Klamaris Nikolaos, The regulation of mediation in the Greek Bills of Law (in Greek), Epitheorisi Politikis Dikonomias (Review of Civil Procedure) 2010, p. 473. On this issue see also Christodoulou K., The Directive 2008/52 on mediation in private disputes (in Greek), Nomiko Vima (Law Tribune) 2010, pp.287-288.

[11]  Explanatory report to Law No. 3898/2010, Article 3.

[12]Kourtis Vasillios, Civil and Commercial Mediation in Greece, in Civil and Commercial Mediation in Europe v.1, edited by Ensplugues C., Iglesias J.L., Palao G., 2013 Intersentia p 205.

[13] Code of Conduct Article 3.2.

[14]Educational Material of the Seminar: Mediation: The alternative dispute resolution procedure, Conference Centre “Ioannis Vellidis”, Thessaloniki, 5th-7th November 2009, (Organisation: Bar Association of Thessaloniki & Bar Association of Piraeus).

[15]  Art. 4(d') Law No 3898/2010 “Mediation in civil and commercial cases”.

[16]  Art. 4 (d') combined with art. 7 Law No 3898/2010 “Mediation in civil and commercial cases”.

[17]Art. 8 Law No 3898/2010 “Mediation in civil and commercial cases”.

[18] The code of Conduct published by virtue of Article 7 para. 2b of  Law 3898/2010.  Avlogiari Evi, Terzis Konstandinos, Code of Conduct for Accredited Mediat

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